Tough, controversial contempt decision by Zambia’s highest court sends corruption activist to jail for six years

22 February 2019 · Carmel Rickard

JUST days after a major international human rights organization released a report expressing concern about the level of official intolerance in Zambia, that country’s highest court has convicted an anti-corruption activist of contempt of court, sentencing him to an effective six years in jail. It is a controversial decision with human rights activists on both sides. The convicted man is Gregory Chifire, director of the Southern African Network Against Corruption, who questioned the outcome of an appeal in a high-profile commercial matter involving enormous financial stakes. His organization and others like Amnesty International have slammed his conviction and sentence. On the other side, the Law Association of Zambia welcomed the outcome, earlier having expressed concern about media allegations that judges, as well as some of LAZ’s own members, were corrupt in their handling of the controversial commercial case.

Read the Front Line Defenders statement here

Read the report "Creeping Towards Authoritarianism?" By the Front Line Defenders here

Read the full judgment here

RUNNING to 82 pages, this is a judgment meant to be taken seriously. To lay down the law about the limits to acceptable criticism of the judiciary and its decisions. To warn the public, the media and members of the legal profession equally that the judiciary will not tolerate further contempt in the face of the court.

Public trust was eroded by “frequent and unjustified attacks” on judges, when their character, integrity and decisions are criticized, said the supreme court. Zambia’s constitution enshrined free speech and a free press, and the judiciary was not above criticism or public scrutiny. But it could not be criticism of such a kind that it prevented the courts from doing their work or that brought the institution “into ridicule”.

In this case, after the appeal judgments, individuals and media houses attacked the courts saying the decision was “procured by corruption”. Critics also attacked the credibility of Stanbic Bank (respondent in the appeal) and its lead counsel, Eric Silwamba SC, “alleging that the bank was renowned for corrupt practices and that its lead counsel had given out colossal sums of money” to the appeal judges and other members of the bench to ensure a judgment in favour of the bank.

Critics also wrote to the Chief Justice, calling on her to reverse the appeal decision because it showed corruption and incompetence and set a bad precedent. While the judiciary could not defend itself from these claims, the Law Association of Zambia (LAZ) defended the judiciary and issued a statement “condemning the unjustified attacks”.

This judgment concerned an “alleged contemnor”, Gregory Chifire, said to be the author of some of the criticisms and a letter to the CJ. The court summoned him to show why he should not be found in contempt and the judgment concerned the resulting inquiry into whether he had made the relevant comments and if so, whether they indeed undermined the integrity of the court and the administration of justice.

The judgment also dealt with alarming claims of “misconduct” by counsel at the bar, “which vice continues to permeate our courts”. It deals in some detail with the origins of their power to make such an investigation, against the background that the judiciary was not immune from criticism, and concludes that they have the power to initiate an investigation into contempt, and did not need to wait for the prosecuting authorities to act.

Critics of the judiciary in this matter – involving decisions of the high court, the appeal court and then the supreme court – did not hold back on their views. After an exchange of correspondence with the CJ, Chifire allegedly called her “the most corrupt judge” in an online publication, and then claimed that money had been paid to judges of the supreme court and the appeal court, all under the CJ’s watchful eye, to ensure that the bank would win the case.

Chifire and others who agreed with him on this matter complained to the Judicial Complaints Commission against three judges that they said were involved in corruption, but these complaints were dismissed by the JCC.

This background “reveals the rampant and unjustified attacks on the judiciary which is unprecedented,” the court writes. “The frequency and callousness with which they were made is what prompted us to take swift action in order to avert the breakdown” of the administration of justice.

Among those giving evidence in the case were two witnesses for the judiciary, including the spouse of one of the impugned judges. She said he was nowhere near Lusaka on the occasion of an alleged meeting there with bank officials and the deputy chief justice to finalise corruption plans.

Speaking in response to the allegations against him, Chifire said he did not write the article which referred to the CJ as the “most corrupt judge”. Nor did he have anything to do with the publication in a tabloid, The Mast, of another article headed “Judiciary one of the most corrupt in Zambia”. However, he had had a telephone interview with a journalist from the publication and he agreed that the contents of the two articles in the media were “in line” with the theme in the letter that he acknowledged he had written to the CJ.

After an adjournment, the case resumed – but not as the court had expected, notes the judgment. Instead, lead counsel in the matter spoke to the judges in terms that were “not only condescending but tainted with sarcasm and clearly intended to mock the court”.

The judges found Chifire in contempt of court, that his words were “actually contemptuous” and that his remarks “have the effect of fueling discontent in the nation and a total breakdown of the justice system” with many individuals and publications continuing to echo his “unjustified attacks” on the bench.

His contempt was aggravated because he clearly did not “fully appreciate” what transpired in the three courts where the matter was heard, so he had acted recklessly by commenting from a position of ignorance. He showed no remorse and his conduct was aimed at “ridiculing the court” and at “derailing proceedings” and the administration of justice”. In this he was partnered by his legal team. Chifire, who had to take responsibility for the media frenzy that followed his remarks about judicial corruption, also made no effort to retract the statements carried by the media or otherwise purge his contempt, all of which lead to a long and costly trial.

This behaviour called for a “stiff and custodial sentence” of six years on each of the four counts, all to run concurrently.

As for counsel in the matter, they were contemptuous, discourteous and failed in their duty to the court. They “mocked the court”, delayed the case thereby intending to derail proceedings. “Their action left us in shock.”

Though they could have been punished by making them face contempt proceedings, or even by suspending them from practice or striking them from the roll, their relative youth meant that the court would give them another chance. They were “admonished in the strongest terms possible”, and urged to attend LAZ workshops on professional ethics.

The court spoke of the events leading up to the judgment as “unfortunate”. No-one would disagree. But while the LAZ welcomed the outcome, others called it a further blow to civil society and free speech. There is already precious little space in Zambia for human rights activists to protest and make their voices heard, and more than anything, the international community will be concerned about whether decisions such as this could have a further chilling effect.

Carmel Rickard

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